Celeste Poltak

The plaintiff sought certification of a class proceeding against the defendant bank, alleging the improper charging of duplicative non-sufficient funds (NSF) fees on re-presented pre-authorized debit transactions.

The defendant consented to the certification.

The court, applying the five criteria under section 5(1) of the Class Proceedings Act, 1992, found that the pleadings disclosed a cause of action, there was an identifiable class, common issues were raised, a class proceeding was the preferable procedure, and the representative plaintiff was adequate.

Consequently, the action was certified as a class proceeding.

The plaintiff sought to certify a class proceeding against the defendant bank, alleging breach of contract and unjust enrichment due to the bank's practice of charging duplicative non-sufficient funds (NSF) fees on re-presented pre-authorized debits.

The motion for certification was brought with the defendant's consent.

The court applied the five-part test under section 5(1) of the Class Proceedings Act, 1992, finding that the pleadings disclosed a cause of action, there was an identifiable class, common issues were raised, a class proceeding was the preferable procedure, and the representative plaintiff was adequate.

The court granted the certification order.

The Superior Court of Justice approved identical third-party funding agreements in four related class actions against major Canadian banks.

The actions allege that the banks charged duplicative non-sufficient funds fees on single dishonoured pre-authorized debits.

The court, applying Section 33.1 of the Class Proceedings Act, 1992, found the agreements to be fair and reasonable, noting the staged success fee was comparable to or more advantageous than the Class Proceedings Fund levy.

The court confirmed the agreements preserved plaintiff control over litigation, ensured the funder's financial capacity for adverse costs, and included appropriate confidentiality and deemed undertaking provisions.

The defendants took no position on the motions.

The plaintiff, Tyler Dufault, moved for court approval of a class action settlement against The Toronto-Dominion Bank and The Canada Trust Company concerning the practice of charging multiple non-sufficient funds (NSF) fees on re-presented pre-authorized debits.

The proposed settlement included an all-inclusive payment of $15.9 million, direct distribution of funds to eligible class members, and non-monetary changes to the defendants' NSF fee disclosure and reversal policies.

The court approved the settlement, finding it fair, reasonable, and in the best interests of the class, noting the high take-up rate due to direct distribution and the significant non-monetary benefits.

The court also approved class counsel's fees and disbursements, third-party funder fees, and a $10,000 honorarium for the representative plaintiff.

The plaintiff, Robyn Ramanauskas, brought a consent motion to certify a class proceeding against the Bank of Montreal.

The action alleged that the bank charged duplicative non-sufficient funds (NSF) fees on re-presented pre-authorized debit transactions, constituting breach of contract and unjust enrichment.

The court found that all criteria under s. 5(1) of the Class Proceedings Act, 1992 were met, including disclosure of a cause of action, an identifiable class, common issues, preferable procedure, and an adequate representative plaintiff.

The motion for certification was granted.

The plaintiff brought a motion on consent to certify a class proceeding against the defendant bank regarding its practice of charging multiple non-sufficient funds (NSF) fees on re-presented pre-authorized debit transactions.

The court reviewed the five-part test under section 5(1) of the Class Proceedings Act, 1992.

Finding that the pleadings disclosed a cause of action in breach of contract and unjust enrichment, and that the other criteria including an identifiable class and common issues were met, the court granted the consent certification order.

The appellant, through her litigation guardian, appealed a Divisional Court decision that reversed a certification order for a proposed class action against the Government of Ontario.

The class action alleged negligence in the administration of services for adults with developmental disabilities and a breach of section 7 of the Canadian Charter of Rights and Freedoms.

The Court of Appeal found that the Divisional Court erred in recharacterizing the negligence claim as impugning core policy decisions and in striking the section 7 Charter claim.

The Court held that the negligence claim concerned operational failures within existing resources, and the section 7 claim alleged psychological harm from the arbitrary administration of waitlists for approved services, which was not foreclosed by existing jurisprudence.

The appeal was allowed, restoring the motion judge's certification order.

The Toronto-Dominion Bank sought summary judgment to dismiss a proposed class action alleging that it improperly charged a second Non-Sufficient Funds (NSF) fee for a single rejected payment that was subsequently re-presented by a third-party payee (PayPal).

The plaintiff argued that the bank's standard consumer banking agreement did not disclose this second fee, constituting a breach of contract, a contravention of consumer protection law, and unjust enrichment.

The court found that the NSF provision in the agreement unambiguously applied only to payments initiated by the customer, not to re-presentments by third parties.

The bank's argument that federal "Network Rules" mandated the second fee or informed the agreement's interpretation was rejected, as these rules were not known to consumers and did not address NSF fees.

Consequently, the bank's motion for summary judgment was dismissed, allowing the class action to proceed to certification.

The plaintiff brought a motion on consent for an order granting leave to discontinue the proposed class action without costs and without notice to putative class members.

The certification motion had previously been dismissed and the action continued as an individual action.

The court granted the motion, finding no prejudice to former proposed class members who had sufficient opportunity to bring their own claims, which were being case-managed together.

The appellant sought to certify a class proceeding against the Crown for failure to hold timely bail hearings, alleging negligence, breach of fiduciary duty, and Charter rights violations.

The motion judge dismissed certification.

The Court of Appeal dismissed the appeal, finding no cause of action in negligence (claims attacked core policy decisions), the fiduciary duty claim abandoned, and the Charter claims lacking common issues and not being a preferable procedure due to the need for individualized assessments.

The plaintiff's class action for systemic negligence in bail hearings was denied certification.

On appeal, the Crown raised the new Crown Liability and Proceedings Act, 2019 (CLPA) as a bar to the negligence claim.

The Divisional Court remitted this specific issue to the motion judge.

The judge found that the CLPA did not substantially change the common law on Crown immunity and that the plaintiff's claim, which challenged high-level policy decisions regarding resource allocation and management of the criminal justice system, remained non-justiciable as a core policy matter, both under the CLPA and pre-CLPA common law.

Consequently, the negligence claim was deemed dismissed without costs under s. 11(8) of the CLPA.

The Superior Court of Justice, on remittal from the Divisional Court, reconsidered the certification of an operational negligence class action claim against the provincial government in light of the newly enacted Crown Liability and Proceedings Act (CLPA) and a constitutional challenge under s. 96 of the Constitution Act, 1867.

The court found it was not plain and obvious that the operational negligence claim was statute-barred by the CLPA, particularly due to the "decision" requirement in s. 11(4) of the CLPA and the plaintiff's pleadings.

Furthermore, the court determined that the s. 96 constitutional challenge to the CLPA was not plainly and obviously doomed to fail, emphasizing the importance of access to courts and the Supreme Court's caution against restoring complete governmental immunity by broadly defining "policy matters." The court concluded that the meaning and constitutionality of the CLPA should be decided on a complete record at trial or summary judgment, not on a pleadings motion.

The original certification of the operational negligence claim remained intact, and a new common issue regarding the CLPA's effect was added by consent.

This decision addresses a rehearing on class counsel's legal fees and the calculation of the Class Proceedings Fund (CPF) levy in a class action settlement.

The court approved the 25% contingency fee, finding it fair and reasonable based on the risk incurred and results achieved, despite an earlier judge's concerns about the settlement's modesty.

The court also determined that the CPF levy should be calculated on the total amount class members were entitled to receive ($10.2 million), rather than the amount actually paid out ($7.5 million), aligning with the settlement agreement and O. Reg. 771/92.

This initial case conference for a proposed class action addressed the scheduling of proceedings leading to a certification motion.

The primary issue was whether the defendant's challenge to the plaintiff's cause of action should proceed as a pre-certification motion under Rule 21 of the Rules of Civil Procedure or be raised within the certification motion under section 5(1)(a) of the Class Proceedings Act.

The court, emphasizing the avoidance of 'litigation by instalments,' determined that the cause of action challenge should be made during the certification motion to prevent piecemeal litigation and potential delays from pre-certification appeals.

A schedule for the certification motion was subsequently set.

This is a costs endorsement following the release of reasons in an appeal.

The respondents advised that the court had misapprehended the appellants' oral costs submissions regarding quantum.

The parties were permitted to provide further written submissions on the costs issue.

The court affirmed its costs order for the appeal but altered the costs of the motion below, reducing the amounts payable by Bank of Montreal and Toronto Dominion Bank.

The appellants sought to add Toronto Dominion Bank and Bank of Montreal as defendants to an existing class action alleging a secret conspiracy to manipulate the foreign exchange market.

The motion judge dismissed the motion on the basis that the claim against the respondents was statute-barred under the Limitations Act, 2002.

The Court of Appeal allowed the appeal, finding that the motion judge erred by establishing too high an evidentiary threshold and by finding that the respondents' identities could have been discovered with reasonable diligence without proper evidentiary foundation.

The court held that the appellants provided a reasonable explanation for why they could not have identified the respondents before the limitation period expired, and that the issue of due diligence should be determined on a summary judgment motion or at trial.

The representative plaintiff brought a motion for approval of a $15 million settlement in a class action against Ontario regarding systemic negligence and breach of fiduciary duty at provincially-run schools for the deaf.

The court found the settlement to be poor for the majority of the class, as 90% of the student class and 100% of the family class would receive no compensation.

However, given the significant litigation risks and the lack of aggregate damages available, the court approved the settlement as falling within the zone of reasonableness.

The court also approved class counsel's fee request of $3.75 million, but on the condition that counsel donate $1.5 million to a charity for the deaf to introduce a cy-près element and provide some benefit to the uncompensated class members.

Indigenous peoples from Ecuador obtained a US$9.5 billion judgment against Chevron Corporation for environmental devastation caused by oil exploration.

After failing to enforce the judgment in the United States due to findings of fraud by the plaintiffs' counsel, they sought to enforce it in Ontario against Chevron Canada, a seventh-level subsidiary.

The motion judge dismissed the claim, finding that Chevron Canada's shares and assets were not exigible under the Execution Act and that the corporate veil should not be pierced.

The appellants appealed, arguing both that the Execution Act permitted seizure of Chevron Canada's assets and that the corporate veil should be pierced in the interests of justice.

The Court of Appeal dismissed the appeal on the merits but reduced the costs award, recognizing the litigation as public interest litigation.

Indigenous Ecuadorian villagers obtained a US$9.5 billion judgment against Chevron Corporation in Ecuador for environmental pollution.

They sought to enforce the judgment in Ontario against Chevron Corporation and its seventh-level indirect subsidiary, Chevron Canada.

The motion judge granted an order requiring the plaintiffs to post security for costs of approximately $942,951 before the appeal could proceed.

The appellants moved to vary this order.

The Court of Appeal set aside the security for costs order, finding that the motion judge erred in principle by failing to conduct a holistic analysis of the justness of the order in all circumstances.

The court emphasized that security for costs orders must be just and should not be used as a litigation tactic to prevent cases from being heard on their merits.

A class action appeal concerning copyright ownership in plans of survey registered or deposited in Ontario's electronic land registry system (ELRS).

The appellant land surveyors claimed that Teranet Inc., which operated the ELRS, infringed their copyright by digitizing, storing, and copying their survey plans.

The motion judge granted summary judgment dismissing the action, finding that copyright in registered or deposited plans belonged to the Province of Ontario under section 12 of the Copyright Act.

The Court of Appeal affirmed this decision, holding that the provincial land registration scheme gave the Crown complete control over registered plans, and that the Crown's publication of those plans through the ELRS occurred under the Crown's direction or control, thereby vesting copyright in the Crown.